Citation Nr: 1222483
Decision Date: 06/28/12 Archive Date: 07/10/12
DOCKET NO. 07-26 529 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for a vision disability, including as secondary to the Veteran's service-connected Type II diabetes mellitus (DM).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Nicole Klassen, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1964 to November 1966, with additional service in the U.S. Navy Reserve.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, dated in February 2006 and February 2007. In its February 2006 decision, the RO denied entitlement to service connection for decreased vision (claimed as blurry/double vision). Six months later, in August 2006, the Veteran submitted a statement identifying additional evidence (i.e., recent VA treatment records) to support his vision disability claim. In this regard, the Board notes that when the Veteran submitted his August 2006 statement, the one-year appeal period for the February 2006 rating decision had not yet expired, and as such, this decision was not yet final. See 38 C.F.R. §§ 20.302, 20.1103 (2011). Thereafter, in February 2007, following the receipt of additional VA treatment records, the RO confirmed and continued the February 2006 denial of entitlement to service connection for decreased vision (claimed as blurry/double vision).
In September 2010, the Veteran testified at a hearing before the undersigned at the RO. A transcript of the hearing has been associated with the Veteran's claims file.
FINDINGS OF FACT
1. Service connection is in effect for DM.
2. The Veteran's vision disability, diagnosed as diabetic retinopathy, is causally related to his service-connected DM.
CONCLUSION OF LAW
The criteria for entitlement to service connection for a vision disability, diagnosed as diabetic retinopathy, have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision.
II. Service Connection
This appeal arises out of the Veteran's contention that he has a vision disability that is caused or aggravated by his service-connected DM. In support of this contention, the Veteran has repeatedly reported that he did not have vision problems until he developed DM. See March 2007 Notice of Disagreement; Veteran's statements dated in July 2010 and September 2010; September 2010 Board Hearing Tr. at 6.
A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (2011). In order for secondary service connection to be established, there must be: (1) evidence of a service-connected disability; (2) medical evidence of a current disability; and (3) medical nexus evidence of a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The Board finds that secondary service connection for a vision disability, diagnosed as diabetic retinopathy, is warranted. In making this determination, the Board notes that service connection for DM was granted in a January 2006 rating decision, with an effective date of August 4, 2005. As such, the Board finds that the first element required for secondary service connection has been established.
Turning to the second and third elements required for secondary service connection, the Board acknowledges that there are conflicting medical opinions of record regarding whether the Veteran has a vision disability connected to his service-connected DM (i.e., diabetic retinopathy). In support of the Veteran's claim, in a September 2010 letter, the Veteran's private physician, Dr. K.G.C., provided an opinion that the Veteran currently has severe diabetic retinopathy of the right eye and mild diabetic retinopathy of the left eye. Similarly, during VA treatment in April 2006, September 2006, January 2007, October 2007, and October 2008, the Veteran was diagnosed with diabetic retinopathy by various treating physicians. In contrast, at the time of the Veteran's October 2005 and May 2007 VA examinations, both of which were conducted by the same VA physician, the examiner provided the opinion that there was no evidence of diabetic retinopathy on examination. See VA eye examination reports dated October 24, 2005, and May 16, 2007. Similarly, during VA treatment in July 2006, the treating physician noted that the Veteran had no retinopathy on examination. See July 25, 2006, VA treatment note.
In weighing and balancing the conflicting medical opinions of record, the Board finds it significant that, throughout the duration of this appeal, the Veteran has repeatedly reported that he did not have vision problems until he developed DM. See March 2007 Notice of Disagreement; Veteran's statements dated in July 2010 and September 2010; September 2010 Board Hearing Tr. at 6. In this regard, the Board notes that, insofar as vision loss is capable of lay observation, the Veteran is competent to report having severely diminished vision, especially in his right eye, since his diabetic episode in July 2005. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection); Layno v. Brown, 6 Vet. App. 465 (1994) (holding that competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted).
Additionally, the Board finds no reason to doubt the credibility of the Veteran in reporting a continuity of eye symptomatology since his July 2005 diagnosis of DM.
In making this determination, the Board highlights that the Veteran's statements are consistent with the contemporaneous medical evidence of record, which reflects that he first reported having blurred vision during emergency treatment in July 2005, at the same time that he was initially diagnosed with DM and was noted to have a glucose level of 1,314, and has since experienced diminished vision. See July 28, 2005, Chemistry Report; July 31, 2005, Discharge Summary; October 2005 VA examination report; VA treatment notes dated April 5, 2006, and July 25, 2006. As such, the Board finds that the Veteran's statements are credible and probative, and add weight to the overall claim.
Accordingly, in considering the evidence of record, the Board finds that the positive medical opinion of Dr. K.G.C., which is consistent with the numerous notations of diabetic retinopathy in the Veteran's VA treatment records and the Veteran's competent and credible reports of a continuity of symptomatology since his July 2005 diagnosis of DM, places the evidence at least in equipoise. See 38 U.S.C.A. § 5107 (b) (West 2002) (stating that when there is an approximate balance of positive and negative evidence, the Secretary shall give the benefit of the doubt to the Veteran); 38 C.F.R. § 3.102 (2011) (noting that reasonable doubt is to be resolved in claimant's favor). Thus, resolving any doubt in this case in the Veteran's favor, the Board finds that the Veteran currently has diabetic retinopathy and that this disability is causally related to his service-connected DM, thereby satisfying the second and third elements required for secondary service connection.
Accordingly, because all three elements required to establish entitlement to secondary service connection have been met, the Board finds that service connection for diabetic retinopathy as secondary to the Veteran's service-connected DM is warranted. See 38 C.F.R. § 3.310 (2011). Therefore, the Veteran's claim of entitlement to service connection for a vision disability, diagnosed as diabetic retinopathy, is granted.
ORDER
Service connection for a vision disability, diagnosed as diabetic retinopathy, is granted.
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Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs